Harith and Kanuth v Beale - [2003] QSC 411

SUPREME COURT OF QUEENSLAND

CITATION: Harith & Kanuth v Beale [2003] QSC 411

PARTIES: PAUL ANTONI HARITH
(First Plaintiff)
and
ELIZABETH GAY KANUTH
(Second Plaintiff)
v
JOHN BEALE
(Defendant)

FILE NO: S55 of 2003 (Mackay)
S163 of 2003 (Rockhampton)

DIVISION: Trial Division

DELIVERED ON: 5 December 2003

DELIVERED AT: Mackay

HEARING DATES: 15-18 September 2003

JUDGE: Dutney J

ORDERS:  1.     Judgement for the defendant against the   plaintiffs on the counter-claim in the sum of                  $31,929.03, together with interest of   $2,926.83.
2.      Declare that the defendant is entitled to a   charge over the property Lot 24 on SP   123431 for that amount, ranking second   behind the existing mortgage to Howard   Mortgage Finance Pty Ltd.
3.     The plaintiffs are restrained from granting          any security over the property ranking in     priority to the defendant’s charge, other than         the existing mortgage to Howard Mortgage         Finance Pty Ltd, until such time as the        amount due to the defendant is paid in full.
4.The defendant is to pay the plaintiff’s costs of                 an incidental to the action up until 18   September 2003, other than costs reserved on                    24 June 2003, 25 July 2003 and 12 September              2003, to be assessed on the standard basis.
5.The plaintiffs to pay the defendant’s costs   incurred since 18 September 2003 (if any) to                    be assessed on the standard basis.
6.No order in relation to the costs reserved on                    24 June 2003.
7.The plaintiffs to pay the defendant’s costs   thrown away by the adjournment on 25 July                  2003 to be assessed on an indemnity basis.
8.Declare that such costs include all legal costs                   and outlays incurred by the defendant up to              and including 12 September 2003, except   costs and outlays necessarily incurred for the   drafting and filing of pleadings, complying               with the defendant’s obligations in relation to   disclosure, costs reserved on 24 June 2003,               attending mediation other than on 25   July 2003 and the interlocutory         hearing in April 2003.

CATCHWORDS: TRUSTS AND TRUSTEES – where defendant purchased property in own name – where moneys contributed by plaintiffs and defendant – where defendant borrowed moneys in own name to complete the transaction as trustee for the plaintiffs – whether defendant entitled to reimbursement for outgoings and time expended – where remuneration over and above outgoings contemplated by the plaintiffs

COSTS – INDEMNITY COSTS – where defendant asserted a beneficial interest in the property until last day of trial – whether plaintiffs entitled to their costs up to the last day of trial – whether plaintiffs entitled to costs on an indemnity basis because of the persistence of the claim for a beneficial interest in the property

COSTS – INDEMNITY COSTS – where June 2003 trial adjourned because plaintiffs unable to fund their legal representation - where solicitors and counsel for plaintiffs and defendant present at Court in Mackay - where defendant was ready to proceed – where defendant could not fund a trial as at September 2003
Trusts Act 1973 (Qld), s 101(1)
Stott v Milne (1884) 25 Ch D 710, cited

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harith and Kanuth v Beale

Details

AGLC: Harith & Kanuth v Beale [2003] QSC 411
Case: [2003] QSC 411
Decision Date: 05 December 2003

CaseChat Overview and Summary

The case of Harith and Kanuth v Beale was heard in the Supreme Court of Queensland. The plaintiffs sought a declaration that the defendant held their chosen property in trust and that he be reimbursed for expenses and remunerated for his efforts. The defendant counterclaimed for his expenses and remuneration. The plaintiffs were ultimately successful in obtaining the declaration sought, restraining them from dealing with the property other than to mortgage it to Howard Mortgage Finance Pty Ltd for up to $750,000. The defendant was successful on his counterclaim for expenses and a reasonable remuneration. The plaintiffs were ordered to pay the defendant's costs of the action up to the final day of the trial, except for costs reserved on certain dates and relating to certain interlocutory applications. The defendant was ordered to pay the plaintiffs' costs of the action from the final day of the trial. The plaintiffs were ordered to pay the defendant's costs thrown away by an adjournment on 25 July 2003 on an indemnity basis.

Orders